https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5328

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **JUDICIAL REVIEW APPLICATION NO. E002 OF 2025** **IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDER OF MANDAMUS** **AND** **IN THE MATTER OF: THE ENFORCEMENT OF COURT ORDERS AND DECREE AGAINST KENYA RAILWAYS CORPORATION, THE COUNTY GOVERNMENT OF KISUMU AND THE GOVERNMENT OF THE REPUBLIC OF KENYA** **AND** **IN THE MATTER OF: SECTIONS 8 AND 9 OF THE LAW REFORM ACT AND THE RULES CONTEMPLATED PURSUANT THERETO** **AND** **IN THE MATTER OF: THE GOVERNMENT PROCEEDINGS ACT, THE KENYA RAILWAYS CORPORATION ACT AND THE COUNTY GOVERNMENTS ACT** **BETWEEN** **AMINA ACHIENG OCHIENG 1ST APPLICANT** **TILAPIA BEACH RESORT LIMITED 2ND APPLICANT** **VERSUS** **THE MANAGING DIRECTOR,** **KENYA RAILWAYS CORPORATION 1ST RESPONDENT** **THE PRINCIPAL SECRETARY, MINISTRY OF INTERIOR &** **COORDINATION OF NATIONAL GOVERNMENT 2ND RESPONDENT** **THE CHIEF FINANCE OFFICER,** **COUNTY GOVERNMENT OF KISUMU 3RD RESPONDENT** **JUDGMENT** 1. Before this Court for determination is the Applicants’ Notice of Motion dated 14th October 2025, filed pursuant to the leave of this Court granted on 14th October 2025. The application is expressed to be brought under Article 47 of the Constitution of Kenya, 2010, Sections 8 and 9 of the Law Reform Act, Cap. 26, Sections 7, 8, 9 and 11 of the Fair Administrative Action Act, 2015 and Order 53 Rule 3 of the Civil Procedure Rules, 2010 and seeks the following substantive orders: - **a) That a Judicial Review Order of Mandamus be issued in favour of the 1st and 2nd Applicants against the Respondents to forthwith pay to the Applicants the sum of Kenya Shillings 76,873,366.00 plus interest at court rates from the date of judgment making an aggregate total of Kenya Shillings 142,410,536.33 as at 14th October 2025, being the amount awarded in the Judgment and Decree of the Environment and Land Court delivered on 24th February 2022 and in the terms stated in the Certificate of Order against the Government issued on 3rd October 2022 in Kisumu ELC No. 40 of 2019; Amina Achieng’ Ochieng’ and Tilapia Beach Resort Limited vs Kenya Ports Authority, Kenya Railways Corporation, County Government of Kisumu and the Honourable Attorney General of the Republic of Kenya.** **b) Costs of the application be provided for.** 2. The background to the application is largely common ground. The Applicants had filed *Kisumu ELC Case No. 40 of 2019* against Kenya Ports Authority, Kenya Railways Corporation, the County Government of Kisumu and the Honourable Attorney General of the Republic of Kenya seeking damages and compensation for loss suffered on account of the unlawful demolition and destruction of their property. Vide a judgment delivered on 24th February 2022, the trial court found the defendants jointly and severally liable and awarded the Applicants a total sum of Kshs. 76,873,366.00 together with costs and interest at court rates from the date of filing of the suit until payment in full. 3. The costs of the suit were subsequently taxed at Kshs. 963,543.00 on 28th September 2023 with interest thereon from the date of taxation until payment in full. Upon extraction of the decree, a Certificate of Costs against the Government and a Certificate of Order against the Government were prepared, issued by the Court on 3rd October 2022 and duly served upon the judgment debtors as required under Section 21 of the Government Proceedings Act, Cap. 40. 4. Aggrieved by part of the said judgment, Kenya Railways Corporation preferred an appeal to the Court of Appeal at Kisumu being *Civil Appeal No. E011 of 2022*. Its application for stay of execution pending the hearing and determination of the appeal was allowed by the trial court on 28th March 2023 on condition that half of the decretal sum be deposited in a joint interest-earning account in the names of the advocates on record within 45 days, failing which the stay would automatically lapse and the Applicants would be at liberty to institute execution proceedings for the entire outstanding amount. 5. It is not disputed that whereas a joint account was opened at KCB Bank, Eldoret Branch, the said deposit was never made within the stipulated 45 days or at all. The conditional stay therefore lapsed by operation of the very terms upon which it was granted. The decretal sum, taxed costs and accrued interest remain wholly unsettled to date, more than four years since the delivery of the judgment. It is against that background that the Applicants moved this Court for the order of mandamus. **The Application** 6. The application is premised on the grounds set out on its face and on the Statutory Statement of Facts dated 1st April 2025, the Verifying Affidavit sworn on 1st April 2025 and the Supporting Affidavit of Amina Achieng’ Ochieng’, the 1st Applicant, sworn on 14th October 2025. The gravamen of the Applicants’ case is that the judgment and decree in Kisumu ELC No. 40 of 2019 remain unsettled since 24th February 2022; that all the requisite processes preceding enforcement against the Government and its entities have been undertaken, including the extraction of the decree, taxation of costs and the issuance and service of the Certificate of Order against the Government; and that the Respondents have failed, refused and/or neglected to settle the decretal debt. 7. The Applicants aver that the 1st Respondent is the accounting officer of Kenya Railways Corporation pursuant to the provisions of the Kenya Railways Corporation Act, Cap. 397; that the 2nd Respondent is the accounting officer of the Ministry of Interior and Coordination of National Government within whose docket the National Police Service, which was found liable in the said suit, falls; and that the 3rd Respondent is the accounting and authorized officer responsible for public funds and financial matters within the County Government of Kisumu pursuant to the Public Finance Management Act, 2012 and the County Governments Act, No. 17 of 2012. As accounting officers of the respective judgment debtors, they owe a public legal duty to settle the decretal debt and to comply with lawful court orders. 8. It is further contended that the refusal to settle the decretal debt violates Section 7(2)(j) of the Fair Administrative Action Act, 2015 which guarantees the Applicants expeditious, efficient and reasonable administrative action; that the Applicants have no alternative remedy of realizing the fruits of their judgment since execution in the ordinary manner does not lie against the Government; and that unless the orders sought are granted, the Applicants shall forever remain without a remedy and the decree of the Court would be rendered worthless, yet orders of the Court are never issued in vain. **The response to the application** 9. The application is opposed by the 1st Respondent through the Replying Affidavit of **Joanne Wachuka,** a Legal Officer of the Corporation, sworn on 6th February 2026. The deponent concedes that judgment was delivered on 24th February 2022 in Kisumu ELC No. 40 of 2019 finding the defendants therein jointly and severally liable in the sum of Kshs. 76,873,366.00 together with costs and interest. She deposes that, being aggrieved with part of the decision, the Corporation filed *Civil Appeal No. E011 of 2022* at the Court of Appeal at Kisumu, a copy of the Memorandum of Appeal being annexed and marked “JW1”. 10. The deponent avers that the Corporation, being a statutory corporation, obtains its operational funds from the Government through its parent Ministry and that such funds are only made available upon being budgeted for and allocated in accordance with the financial year budget with the approval of the Cabinet Secretary; that the Corporation presented the said claim for inclusion in the new financial year and is still awaiting a response; and that the delay in complying with the court orders is a circumstance beyond its control. 11. She further deposes that the judgment was to be satisfied by the respondents jointly and severally and that the Corporation has not been made aware of its portion to settle from the cumulative sum of the decree; that the Corporation has not declined or neglected to honour its part, and had even opened an account at KCB Eldoret Branch but is still awaiting communication on budgetary approval; that officers of the Corporation have severally engaged the parent Ministry to solicit both instructions and funds, and that in late 2025 one Mrs. Masaka, State Counsel from the State Law Office in Kisumu, convened a round-table meeting between the parties in a bid to reach an amicable solution, but no tangible commitment could be made absent a budgetary allocation. 12. The deponent maintains that the 1st Respondent is willing to settle its portion of the decretal sums of the cumulative amount; that it is not in contempt of court; and that the orders of mandamus sought against the Corporation’s Managing Director are not warranted since the Corporation has not declined to pay as alleged, it being only the portion of the judgment that it is to settle that is in dispute. 13. Despite having been duly served with the application, the 2nd and 3rd Respondents neither filed any response nor participated in these proceedings. **The submissions by the parties** 14. When the application came up for directions, the Court directed that it be canvassed by way of written submissions. The Applicants filed their written submissions through the firm of Odhiambo Ouma and Company Advocates while the 1st Respondent filed its written submissions dated 19th May 2026 through the firm of M/s Tom Mutei Advocates. I have considered the said rival submissions in their entirety and I shall make reference to them, where necessary, in the course of the analysis. 15. The Applicants submitted that the 2nd and 3rd Respondents neither appealed against the judgment delivered on 24th February 2022 nor filed any response opposing the instant application and have therefore rendered no reasons or grounds why the application should not be allowed as against them. As regards the 1st Respondent, it was submitted that its response is wanting in merit; that having been granted a conditional stay of execution on 28th March 2023, it completely defied the orders of the court by failing to deposit half of the decretal sum within 45 days, never sought extension of time, never challenged the said order by way of appeal or review, and has never demonstrated its inability to comply. 16. It was further submitted that since the delivery of the judgment, the 1st Respondent has gone through several financial years within which it ought to have secured the funds through appropriate budgetary allocations, but has instead shown outright defiance of express orders of the court without materially demonstrating any clear steps taken to liquidate the decree or a portion thereof. Reliance was placed on Order 42 Rule 6 of the Civil Procedure Rules to the effect that an appeal shall not operate as a stay of execution except in so far as the court appealed from may order. The Applicants urged that the judgment remains unsettled more than four years since its delivery, that they have complied with all the statutory prerequisites for the grant of the orders sought, and that court orders are never issued in vain. They prayed that the application be allowed as prayed with costs. 17. On its part, the 1st Respondent submitted that it is a state corporation established under Section 3 of the Kenya Railways Corporation Act whose funds are public monies availed through the parent Ministry upon budgetary allocation with the approval of the Cabinet Secretary for Finance as stipulated under Part V of the said Act, and that under Sections 26 and 27 thereof it is obligated to maintain proper books of account which are subject to audit by the Auditor-General. Counsel submitted that the Corporation is alive to the provisions of Section 88 of the Kenya Railways Corporation Act which mandate it to settle judgments against it, and that it has not refused or neglected to settle the decretal sum; rather, it has presented the claim to the Cabinet Secretary for consideration, approval and release of funds and is still awaiting a response. 18. Counsel further submitted that the 1st Respondent has not been made aware of the portion of the decree it is to settle, the judgment having declared the decretal sum payable jointly and severally; that the delay in complying with the court orders is a circumstance beyond its control; and that the Corporation is willing to settle its portion of the decretal sums. The Court was urged to apportion the amount the 1st Respondent is to settle and to grant the Respondents time to obtain the funds to settle the decree upon approval of the budget by the Cabinet Secretary. **Analysis and Determination** 19. Having considered the application, the affidavits filed by the parties and the rival written submissions, it is my considered view that the following issues arise for determination: - **i. Whether the Applicants have satisfied the conditions for the grant of an order of mandamus;** **ii. Whether the reasons advanced by the 1st Respondent constitute lawful justification for the non-settlement of the decretal sum; and** **iii. What orders should issue, including on costs.** **Issue No. i** **Whether the Applicants have satisfied the conditions for the grant of an order of mandamus** 20. The principles governing the grant of an order of mandamus are well settled. An order of mandamus issues to compel the performance of a public legal duty imposed on a person or body of persons by a statute, where that person or body has failed or refused to perform the same, and the applicant has a legal right to the performance of the duty. The Court of Appeal in **Republic v Kenya National Examinations Council ex parte Gathenji & 8 Others, Civil Appeal No. 266 of 1996; [1997] eKLR** explained that an order of mandamus commands the person or body to whom it is directed to perform a public duty imposed by law, that the duty must be of a public nature, and that its performance must be due and owing to the applicant who must have demanded the same. 21. Where the judgment debtor is the Government or a public body against which execution does not lie in the ordinary manner, the procedure for enforcement of a money decree is that prescribed under Section 21 of the Government Proceedings Act, Cap. 40. Under Section 21(1) thereof, a decree holder is required to obtain a certificate of order against the Government and serve the same upon the accounting officer concerned. Section 21(3) then obligates the accounting officer of the Government department concerned to pay the amounts specified in the certificate together with interest, if any. Once the certificate has been issued and served and payment is not forthcoming, an order of mandamus is the appropriate remedy available to the decree holder to compel the accounting officer to perform that statutory duty. This has been affirmed in a long line of authorities including **Republic v Permanent Secretary, Office of the President, Ministry of Internal Security ex parte Nassir Mwandihi [2014] eKLR.** 22. Applying the said principles to the present application, the following facts are either admitted or uncontroverted: first, that judgment was entered in favour of the Applicants on 24th February 2022 in Kisumu ELC No. 40 of 2019 against the judgment debtors jointly and severally in the sum of Kshs. 76,873,366.00 together with costs and interest at court rates from the date of filing of the suit until payment in full; secondly, that the costs were duly taxed at Kshs. 963,543.00 on 28th September 2023; thirdly, that the decree was extracted and a Certificate of Order against the Government was issued on 3rd October 2022 and duly served upon the judgment debtors; and fourthly, that despite the lapse of a period in excess of four years since the delivery of the judgment, no part of the decretal sum has been paid. 23. The 1st Respondent is the accounting officer of Kenya Railways Corporation, a state corporation established under Section 3 of the Kenya Railways Corporation Act. Indeed, the 1st Respondent through its own submissions acknowledged the obligation under the Kenya Railways Corporation Act to satisfy judgments and orders of the court made against the Corporation. The 2nd Respondent is the accounting officer of the Ministry of Interior and Coordination of National Government under whose docket the National Police Service, whose actions gave rise to the liability, falls. The 3rd Respondent is the officer responsible for public funds and financial matters within the County Government of Kisumu under the Public Finance Management Act, 2012 and the County Governments Act, 2012. Each of them therefore bears a public legal duty to settle the decretal debt on behalf of the respective judgment debtors. 24. The 2nd and 3rd Respondents did not oppose the application at all despite due service. No reason whatsoever has therefore been placed before this Court why the orders sought should not issue against them. As against the 1st Respondent, the existence of the decree, its service, the demand for payment and the fact of non-payment are all admitted. What remains is the consideration of the reasons proffered for the non-payment, to which I now turn. **Issue No. ii** **Whether the reasons advanced by the 1st Respondent constitute lawful justification** 25. The 1st Respondent advanced three principal reasons for the non-settlement of the decree: first, that as a state corporation it depends on budgetary allocations from the Government which are yet to be approved; secondly, that it has a pending appeal at the Court of Appeal; and thirdly, that the decretal sum was awarded jointly and severally and it is yet to be apprised of its portion. I have carefully considered each of the said reasons. 26. On the question of budgetary constraints, it is now well settled that a plea of lack of budgetary allocation, without more, cannot constitute lawful justification for the indefinite non-settlement of a decree of the court. Public bodies are under an obligation to make provision in their budgetary estimates for the settlement of decrees and judgments entered against them. As was observed in **Republic v Permanent Secretary, Office of the President, Ministry of Internal Security ex parte Nassir Mwandihi (supra),** budgetary constraints cannot override the constitutional command in Article 159 of the Constitution that justice shall not be delayed, nor can they defeat a decree holder’s entitlement to the fruits of their judgment. In the instant case, in excess of four financial years have come and gone since the judgment was delivered on 24th February 2022. The 1st Respondent has not placed before this Court any material demonstrating the concrete steps taken in each of those financial cycles to procure a budgetary allocation towards the decree no budget proposals, no correspondence with the National Treasury, and no evidence of any partial provisioning. A bare averment that the claim was “presented for inclusion in the new financial year” falls far short of discharging the duty owed to the Applicants. 27. On the pendency of the appeal, the position in law is clear. By dint of Order 42 Rule 6 of the Civil Procedure Rules, an appeal does not of itself operate as a stay of execution except in so far as the court appealed from may order. In the present case, the 1st Respondent was in fact granted a conditional stay of execution on 28th March 2023 upon terms that it deposits half of the decretal sum in a joint interest-earning account within 45 days, failing which the stay would automatically lapse. It is common ground that the deposit was never made. The stay therefore lapsed by operation of its own terms. The 1st Respondent never sought an extension of time, never sought a review or variation of the said conditions, and has not obtained any stay from the Court of Appeal. There is accordingly no order of stay in force, and the pendency of *Civil Appeal No. E011 of 2022* constitutes no bar whatsoever to the enforcement of the decree. A party which seeks the shelter of a conditional stay must comply with the conditions upon which it was granted; it cannot disobey those conditions and yet continue to enjoy the protection of the stay. 28. On the plea for apportionment, the judgment of the trial court found the judgment debtors liable jointly and severally. The legal consequence of a joint and several judgment is that the decree holder is entitled to recover the whole of the decretal sum from all or any of the judgment debtors. The question of the proportions in which the judgment debtors should ultimately bear the burden inter se is a matter of contribution amongst themselves and is of no concern to the decree holder, nor can it be a condition precedent to compliance with the decree. This Court, sitting in judicial review, has no jurisdiction to rewrite or vary the terms of the decree in Kisumu ELC No. 40 of 2019 by apportioning liability amongst the judgment debtors. The invitation by the 1st Respondent for this Court to apportion the amount it is to settle is therefore declined. If the 1st Respondent settles the decree in full, nothing prevents it from pursuing contribution from its co-judgment debtors through the appropriate mechanisms. 29. The upshot of the foregoing is that none of the reasons advanced by the 1st Respondent constitutes lawful justification for the continued non-settlement of the decree. The Applicants obtained their judgment on 24th February 2022. They have patiently pursued every procedural step required of them under the law. More than four years later, they are yet to receive a single shilling. Courts do not issue orders in vain, and the sanctity of court orders lies at the very heart of the rule of law enshrined in Article 10 of the Constitution. A decree holder who has done everything required by the law cannot be left holding a barren judgment at the mercy of interminable bureaucratic processes. 30. As regards the quantum, the Applicants computed the outstanding amount at Kshs. 142,410,536.33 as at 14th October 2025, being the decretal sum plus accrued interest. Interest continues to accrue in terms of the decree until payment in full. The precise arithmetic of the accrued interest as at the date of payment is a matter of computation in accordance with the judgment, the decree and the certificate of taxation, and the order of this Court shall accordingly issue by reference to those instruments. **Costs** 31. On costs, the general principle under Section 27 of the Civil Procedure Act is that costs follow the event. The Applicants have been put to the expense of instituting these proceedings solely on account of the Respondents’ failure to settle a decree lawfully issued against them. There is no reason to depart from the general principle. The Applicants shall have the costs of the application. Considering that these proceedings arose from the non-settlement of a decree whose costs have already been taxed, I find it appropriate to summarily assess the costs of the instant application so as to obviate a further round of taxation. The application was opposed and it involved the enforcement of a substantial decretal sum. Guided by Schedule 6 Paragraph 1(j)(ii) of the Advocates Remuneration Order, 2014, which prescribes an instruction fee of not less than Kshs. 100,000.00 in respect of opposed matters of this nature, and taking into account the value of the subject matter, the nature of the proceedings and the work involved, I assess the costs of the application at Kshs. 100,000.00 all inclusive, payable by the Respondents jointly and severally. **Final orders** 32. In the end, the Court finds that the Notice of Motion dated 14th October 2025 is merited and the same is allowed in the following terms:- **I. An Order of Mandamus be and is hereby issued directed at the 1st, 2nd and 3rd Respondents, in their respective capacities as the accounting officers of Kenya Railways Corporation, the Government of the Republic of Kenya and the County Government of Kisumu, compelling them to pay to the Applicants the decretal sum of Kshs. 76,873,366.00 together with the taxed costs of Kshs. 963,543.00 and all accrued interest thereon at court rates in terms of the Judgment and Decree in Kisumu ELC Case No. 40 of 2019 and the Certificate of Order against the Government issued on 3rd October 2022, until payment in full.** **II. The Applicants shall also have costs payable by the Respondents jointly and severally, and the same are hereby summarily assessed at Kshs. 100,000.00 all inclusive.** **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 21ST DAY OF AUGUST 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of: -** **Mr. C. Ouma for the Applicants.** **Ms. Moraa for the 1st Respondent.** **N/A for the 2nd Respondent.** **N/A for the 3rd Respondent.** **Court Assistant: Joanne Omondi.**